Dominguez v. City of Scottsdale

• Decision Date: 24 February 2022
• Docket Number: CV-21-00089-PHX-SRB (MTM)
• Citation: 587 F.Supp.3d 914
• Parties: Andres DOMINGUEZ, Plaintiff, v. CITY OF SCOTTSDALE, et al., Defendants.
• Court: U.S. District Court — District of Arizona

587 F.Supp.3d 914

Andres DOMINGUEZ, Plaintiff,
v.
CITY OF SCOTTSDALE, et al., Defendants.

No. CV-21-00089-PHX-SRB (MTM)

United States District Court, D. Arizona.

Signed February 24, 2022

587 F.Supp.3d 920

Jesse Morgan Showalter, Joel B. Robbins, Robbins & Curtin PLLC, Phoenix, AZ, for Plaintiff.

Lori Simpson Davis, Stephanie Lynn Heizer, Scottsdale City Attorneys Office, Scottsdale, AZ, for Defendants.

ORDER

Susan R. Bolton, United States District Judge

Plaintiff Andres Dominguez, through counsel, brought this civil rights action pursuant to 42 U.S.C. § 1983 and Arizona law. Defendants City of Scottsdale, Daniel Koller, and Nikolas McElley have filed a Motion for Summary Judgment (Doc. 25). The Motion is fully briefed. It will be granted in part and denied in part.¹

I. Background

On January 15, 2021, Andres Dominguez filed a civil rights Complaint against the City of Scottsdale and Scottsdale Police Officers Daniel Koller and Nikolas McElley, bringing claims arising from the officers’ use of force and arrest on January 19, 2020. (Doc. 1.)

In Count One of his four-count Complaint, Dominguez asserts a state law claim for tortious assault and battery, alleging Koller and McElley are directly liable for assaulting and battering him without justification while acting in the course and scope of their employment for Scottsdale, and Scottsdale is vicariously liable. In Count Two, Dominguez brings a state law claim for negligence against Scottsdale, claiming it breached its duty of care by failing to supervise and train its officers and adopt policies with respect to the seizure of suspects and the use of force. In Count Three, Dominguez brings a 42 U.S.C. § 1983 claim against Koller and McElley for excessive use of force in violation of the Fourth Amendment. In Count Four, Dominguez brings a § 1983 claim against Koller and McElley for false arrest in violation of the Fourth Amendment.

Defendants requested, and were granted, leave to file an early motion for summary judgment. (Docs. 13-14.)² Defendants move for summary judgment on all claims arguing: (1) they are entitled to qualified immunity on Dominguez's § 1983 excessive force and false arrest claims; (2) the assault and battery claim against Koller and McElley is barred because they were not served with a notice of claim; (3) the claim for assault and battery against Scottsdale fails because it cannot be held vicariously liable as a matter of law; (4) alternatively, Koller and McElley are immune from liability for the assault and battery claim because the use of force was justified; and (5) the negligence claim against Scottsdale fails as a matter of law, because the alleged underlying torts by Koller and McElley were justified.

II. Summary Judgment Standard

A court must grant summary judgment "if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548.

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc. , 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see Triton Energy Corp. v. Square D. Co. , 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ; however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson , 477 U.S. at 249, 106 S.Ct. 2505. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255, 106 S.Ct. 2505. The court need consider only the cited materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

III. Facts

The following facts are either undisputed by the parties or, if disputed, recounted in the light most favorable to Dominguez, the non-moving party.³

A. Traffic Stop

On January 19, 2020, Dominguez was driving home from dropping off keys at a condominium complex in Scottsdale, Arizona, to change clothing before his 8:00 p.m. work shift as a security guard at another complex. (PSOF ¶¶ 113, 121.) En route, Dominguez turned northbound onto Scottsdale Road, stopped at a red traffic light at Highland Avenue, and then made a U-turn on green and continued southbound on Scottsdale Road. (Id. ¶¶ 114-116.) Along the way, Officer Koller, who was on routine patrol that evening, saw Dominguez driving and observed his vehicle cross between the lanes multiple times. (PSOF

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¶¶ 1, 14; DSOF ¶¶ 1, 14.) Koller also observed that the vehicle registration sticker on the upper right side on Dominguez's license plate had expired. (DSOF ¶ 3.)

Koller followed Dominguez's vehicle to a safe area and activated his emergency lights to initiate a traffic stop at approximately 7:15 p.m. (PSOF ¶¶ 18-19; DSOF ¶¶ 18-19.) Dominguez then slowed down, made a right turn onto First Street, and parked in an angled parking spot at 7146 East First Street. (PSOF ¶¶ 22, 119-120; DSOF ¶ 22.)⁴ Once stopped, Koller noticed that Dominguez's license plate had a second registration sticker on the upper left side that was current and unexpired. (DSOF ¶ 25.)

Koller activated his on-body camera and approached the driver's side window of Dominguez's vehicle, which was rolled down halfway. (PSOF ¶¶ 26, 122; DSOF ¶ 26.) Dominguez pulled out his driver's license and proof of insurance, which he held in his hands when Koller approached. (PSOF ¶ 122.) Koller greeted Dominguez with "What's up man?"; Dominguez replied back "What's up?" (Doc. 20-1 at 25.) Koller asked where he was headed, and Dominguez stated he was going home to Tempe to get changed for work. (Id. ) The following exchange then ensued:

Dominguez: What did—did I break a law?

Koller: You live in Tempe?

Dominguez: I live in Tempe.

Koller: Okay. What's with the attitude, man?

Dominguez: I'm in a hurry and I don't know—I don't break—I'm a very, very cautious, good driver ... I saw you when I made my U-turn ... I know I didn't break any laws, so I'm curious to why you—

Koller: ... You know that you didn't break any laws? ... So, are you saying that I'm violating your rights right now?

Dominguez: ... I haven't had a traffic ticket in a very long time ... I'm a very good driver ... So, what's up?

Koller: Okay, so ... do you just not like the police or what?

Dominguez: Look, sir. I don't have time for this. I have to go home. I have to get changed. I have a shift that starts at 8 o'clock.

Koller: Well, that's going to take you longer if you keep the attitude.

Dominguez: Well, I don't have an attitude. Do you want to tell me what you need?

Koller: Yeah, I need your license, registration, proof of insurance. I also need to know if there's any guns or knives in the car.

Dominguez: I don't have any guns. I'm an armed guard, but I don't have my gun with me ... I'm a security guard.

(Id. at 26-27.)

The two then began to discuss where Dominguez worked as a security guard, what Dominguez had done earlier in the day, and where Dominguez was coming from at the time he was pulled over. (Id. at 27-28; PSOF ¶ 135.) During this discussion, Dominguez searched around his vehicle, reached into his glove compartment, and reached into his back pocket and pulled out items which he put in the passenger seat. (Koller OBC at 00:59-01:36; McElley OBC at 00:12-00:25.) At the same time, Officer McElley arrived as backup, activated his on-body camera, approached

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the passenger door, and pointed his flashlight inside the vehicle. (Id. ; PSOF ¶¶ 32, 135; DSOF ¶ 32.)

Dominguez held out his license and insurance, prefacing that the vehicle was registered to his mother. (Doc. 20-1 at 28; PSOF ¶ 133.) Koller responded "So, you're a security guard, but you have an attitude towards the police? ... you have almost the same job as we do." (Doc. 20-1 at 29.) Dominguez replied "I don't know what you're talking about attitude. You better lose your attitude, okay ... I don't even know what you ...", at which time Koller opened the driver's door and stated "Okay ... go ahead and step out of the car." (Id. ; PSOF ¶ 138; DSOF ¶ 40.)

B. Removal

In rapid succession, Koller told Dominguez again to step out of the car several times, while Dominguez simultaneously responded "You don't have a right to open the door ... This is private property." (Doc. 20-1 at 29.) Dominguez claims Koller stepped towards him and positioned himself between Dominguez and the open door, physically preventing Dominguez from exiting the vehicle. (PSOF ¶¶ 138, 140.) As Koller moved closer to Dominguez and ordered him to get out of the car again, Dominguez put his hands in the air, holding his license and insurance in...